The Conservative - Libertarian Schism: Constitutionalism And Freedom

This essay is an extension of some of the ideas in an earlier post, which may be found at:

Since the posting of the abovementioned essay, a number of FReepers have written me to comment on "the missing ingredient" of libertarianism: a respect for the law, in particular for the supreme law of the land, the Constitution of the United States. Adherents to the libertarian philosophy, they claim, are entirely too willing to flout the law and to disregard Constitutional stricture in their boundless devotion to principle.

I won't dismiss the charge out of hand. It has some substance. And constitutionalism is an important element in the defense of liberty, as we shall see. However, to condemn a group or its animating ideal because, at a particular point in time, what it advocates is outside the law is a bit shortsighted and low on context.

First, the negative aspects of rigid adherence to the law must be admitted. A case in point: There was a time when slavery was not only condoned by the Constitution and the law in several states, but the other states of the Union, against their own law and the inclinations of their citizens, were compelled by the Fugitive Slave Act to return escaped slaves to their "rightful owners." No one would rise to defend these legal obscenities today, yet at that time, they were enforced with federal power. Those who defied them were not villains, but the heroes of the time. Like another great Hero, the greatest known to history, they came not to overthrow the law, but to fulfill it.

Another case in point: At the conclusion of World War II, the Allied Powers imposed war crimes trials on defeated Germany and Japan. The Nuremberg Tribunal executed or imprisoned many persons, not all of whom were Third Reich policy makers, and not all of whom were personally guilty of direct violence against undeserving victims. The argument used to convict them was that they were instruments in the Nazi death machine, that they knowingly participated in organizing its crimes against humanity and giving them the patina of legality, and that the written law of the Reich, which often explicitly prescribed their deeds under threat of horrific punishment, was no defense. Many judges were imprisoned for life on this basis.

These examples and others like them suggest that there are limits to the fidelity a man owes to the written law. Of course, opinions will vary as to where those limits lie, but a key element of our founding tradition is the recognition that they exist:

But let it not be thought that written law and its observance are merely shackles for the citizen. The concept of written law, properly understood, and the principle of constitutionalism are the best formal safeguards for freedom that any society has ever devised. They must be twisted and abused to be made into instruments of despotism.

A side observation: Isn't it one of the major criticisms of the federal government at this time that the overwhelming majority of "laws" are made, not by Congress, whose members seldom even read the bills they vote on, but by the unelected regulators and bureaucrats of the "alphabet agencies"? Isn't it a great part of our unhappiness with Washington that the gigantic Federal Register, whose contents are legally binding on every American, is produced by faceless men no voter can remove, and is as fluid and elusive as the proverbial butterfly of love?

The Federal Register, which is arguably more important to American life than any other emission of the federal government, fails to exhibit the most important, legitimizing characteristics of written law -- and from here we pass to what those characteristics are.

In the United States, at the federal level, that means the law must be made by Congress, with approval by the President and contingent sanction from the federal courts. It also means that the law must conform to the requirements of the Constitution and the great tradition of the Anglo-American common law, in which the common understanding of right and wrong have been codified over a millennium of reasoning and practice.

The principle of constitutionalism was invented on these shores. It was the first assertion of any standard for legitimacy other than divine right or force of arms. In exalting the law above the ruler -- indeed, in asserting that the rulers themselves are subject to the law, bound by it quite as much as any private citizen -- it first announced to the Old World that something new was going on here.

Constitutionalism doesn't sit alone in the void, giving birth to all our ideas. It is itself grounded in the postulate that government must have the consent of the governed, or at least an overwhelming majority thereof. At the time of the Founding, the "overwhelming majority" standard was set at three-fourths of the states. That was the requirement for ratification, and also the requirement for amendment.

It's worth reflecting on how little the Constitution would be worth if it were possible for Congress to amend it by a simple majority vote. That's the case in New York, whose state constitution is hardly worth the paper it's written on. Whenever the New York legislature wants to extend its powers, it simply votes itself new ones. This happens rather frequently. Yet even this smirk at the consent of the governed pays homage to the underlying rule: that government is bound by the document that expresses the people's consensus about its legitimate powers.

A government that seizes powers not granted by the people's consensus -- in the United States, a government that transgresses the bounds set by its constitution -- is an illegitimate government, that has no rightful claim on the obedience of its citizens.

Obviously, when practiced properly, without any "evolving document" evasions, constitutionalism is an enormously conservative idea. It puts a brake on rapid and wide-ranging changes in government and its authority. It requires the fulfillment of an elaborate set of procedures to approve expansions of power. It keeps the rulers intimately in touch with the people whose natural individual sovereignty they borrow.

This is not just a conservative, tradition-affirming idea; it is a powerful liberty-affirming idea. Any bounds on the powers of the State are libertarian in nature. They insist that the Republic must confine itself to the rei publicae, the public matters upon which legislation and exertion of political authority are appropriate. If the precise placement of the bounds changes, it will be gradually, and only with the express consent of the governed.

Opponents of constitutionalism, who dislike its conservative tendency, often raise the "slavery objection" to the original document: how, they ask, can you sanctify a document that allowed some men to own others? What they fail to see is that, though the Constitution as ratified permitted the obscenity of slavery -- ratification would not have been possible otherwise -- the principles behind the Constitution and enshrined in its provisions guaranteed slavery's eventual demise. To protect slavery for even a few years, Chief Justice Roger Taney had to claim in the Dred Scott decision that a Negro was not a human being, an entirely unsustainable position.

The chief problem with constitutionalism is the problem constitutionalism itself tries to solve: the problem of lawless government. At this time, more than 90% of federal activity and lawmaking is in violation both of the provisions of the Constitution and of the principles upon which it's based. The greatest obscenity is Congress's routine delegation of its lawmaking power to unelected regulators. This privilege was not granted to Congress in the Constitution, and for good reason: It puts the real lawmakers of the United States out of reach of the electorate, safe from removal.

This was made possible by citizen passivity. The enforcement agency of the Constitution is the citizenry; there is no other.

Libertarians and conservatives must find ways to reimpose Constitutional limits on the State, without interpretive legerdemain to accommodate particular interest groups, and without carving holes in the fundamental rights expressed by the Bill Of Rights that would allow governments to conduct campaigns against private practices some people dislike.

The alternatives to a properly framed, properly observed constitution and objective written laws consistent with it are anarchy and tyranny. Anarchy looks ever more attractive to a people who cannot restrain the State that rules over them. Tyranny, of course, always looks attractive to people who want power over others.

There has not only been a split in lib/con politics but also between libertarians here in Canada.This is from http://www.mondopolitico.com/discus/messages/380/538.html?1018545198 it is a small explanation of this.

" I guess the first thing (a minor point, really) is that, to my knowledge, the Libertarian party isn't currently operating at the federal level. I've spoken with Sam Appelbaum of the Ontario Libertarians, and I know that they ran a couple of candidates in the last provincial election, but I don't think they have any federal aspirations right now.

More to the point: I don't think anything separates the Freedom Party from libertarians or the Libertarian parties in any serious sense. Both the Freedom Party and most libertarians support absolute rights of life, libertyandproperty.Therearesignificantnon-theoretical differences, however.

First, there are many communists who bill themselves "anarchists". They see anarchy as merely a step toward a communist revolution: the tearing down of our current society, and the imposition of a communist one via revolution. Many such communists also bill themselves as "libertarians" for the exact same reason. To my mind, they see the libertarian ideal as simply a way to make government weak so that it can be toppled by revolutionary communists. A far-fetched fantasy for them, to be sure, but it has the effect of making libertarianism a relatively hard thing to describe and a thing to be feared.

This is perhaps why Schwartz railed against "libertarians" in his essay (the title escapes me at present) in Ayn Rand's book (a collection of essays), which book is titled "The Voice of Reason". Schwartz argued, essentially, that libertarianism is prone to losing its way and to being unable to defend its principles unless its principles (i.e., rights of life, liberty and property) are backed by a guiding philosophy. In his case, the justification offerred for insisting every individual has an absolute right to his/her life, liberty and property was objectivism: (a) that which allows life to survive and thrive is moral and good, and that which causes death is immoral and evil, (b) knowledge is knowable (A is A), (c) man's ability to reason is his means of surviving and thriving, (d) the law must protect man from assaults on reason and the product of reason: it must protect every mans life, liberty and property so as to protect his freedom to survive and thrive, (e) by protecting every person's life, liberty and property, the thriving and survival of life is facilitated, hence (f) for a government to protect rights of life, liberty and property is moral and good, and for government to violate those rights is immoral and evil.

The Freedom Party is very careful to shun communists and anarchists who pose as "libertarians", but we embrace libertarians who see government as having a legitimate function: the protection of life, liberty and property rights.

Second, most libertarian parties take a rather doomed approach to politics: they try to force ideology down the throats of the electorate, and propose revolutionary change rather than gradual change. Socialism wasn't imposed in a day. Choice wasn't removed in a day. Property rights weren't removed in a day. Nor will freedom of peaceful personal choice and property rights be successfully restored in a day. Take, for example, the CPP. People have paid into it for decades. To them, it has a value. The reality may be that the CPP is run more like welfare than like a portfolio of investments, but that does not mean that those who have paid into it should be deprived of the value of their pensions. Accordingly, whereas it would be desireable to end compulsary payments into the CPP, it would be immoral simply to tell every Canadian who has paid into the CPP that they will see no pension. Instead, the moral thing would be to give them the full value of their pension as at the date on which the CPP is wound up, and to let them invest their pension moneys in the retirement plan they choose. The problem is this: what if there is not enough money to give everyone the current value of their Canada Pension? It may be necessary for government to spend on such a payout even though government spending on pensions would normally be contrary to libertarianism: years of socialism make a return to capitalism more difficult than simply cutting people off. Indeed, to simply cut them off could very well constitute a violation, by government, of each pensioner's property rights. Accordingly, a functional difference between the Freedom Party of Canada and many libertarian parties is that we would take a workable approach to restoring choice and property rights. Where a violation of choice or property can be ended quickly without major repurcussions, acting quickly is fine. If a law is discriminating against people (for example, on the ground of sexual orientation, age, etc.), then it may very well be made non-discriminatory in short order. But, where acting quickly to change a law or policy could very well violate the very principles that we are seeking to respect, or where acting quickly would have a dramatically negative impact on Canadians, a more paced and cautious remedial course must be followed.

Perhaps the best way to sum this all up is as follows: the Freedom Party of Canada is not a social club. It is not an educational organization, though it is happy to explain its policies. It is not a religion or a school of philosophy. It is not a lobby group. It is not a place for people simply to comiserate. It is a political party with long-term aspirations of winning seats in the House of Commons so that it can take responsible steps to restoring freedom of peaceful personal choice and responsibility, property rights, and non-discriminatory law and policy.

I don't know if that helps you. Hopefully it does. Please let me know if you have any questions or concerns. Regards, Paul McKeever Chair, Freedom Party of Canada"

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